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The Bizarre World of Embryo Banking. Where My Motherhood and Morality Meet.

December 7, 2012 | By: | Filed under: adoption, Check This Out, Current Affairs, Egg Donation, Financing Fertility Treament or Adoption, In the News, IVF, known sperm donation, Personal Musings, The Journey to Parenthood, Third-Party Assisted Reproduction, Thoughts on Choosing an Egg Donor, Uncategorized

Every once in a while I have true conflicts between my self as a former infertility patient and my career as a reproductive lawyer and adoption attorney.  A couple of years ago, I wrote a law review article on the disposition of frozen embryos, and whether or not talking about embryo adoption was legally correct whether the better, more appropriate terminology was/is embryo donation.  There are hundreds of thousands of frozen embryos in cryopreservation in this country where the intended parents of those embryos no longer wish to use the embryos for their own family building.  These embryos are often referred to as “leftovers” a term which somewhat disturbs me but is strictly speaking, accurate.  These embryos are “leftover”, after a family was created through IVF and now remain in a state of frozen suspension.  Many of those embryos could be used to help build another family, and be donated to an infertile couple.  There was some confusion as to whether these embryos should be placed for adoption or donated in a similar manner to egg and sperm donation and I wanted to resolve that confusion — at least for myself.  I ultimately drew the legal conclusion that the term embryo adoption isn’t really accurate because there isn’t a human being to adopt.  I could go into a lengthy analysis of how I came to that conclusion but your eyes would roll back in your head and you would probably start drooling from boredom.  So let’s just defer that analysis and argument for another day.  If you are interested, you can get a copy of the article on the web (click here).  I now happen to be a huge advocate for embryo donation.  I think it is a fabulous way to build a family.  However, these are musings for another blog.  But my article did provide some clarity to those medical facilities which are banking those frozen “leftover” embryos.

So here I have been sitting happy as a woman with a barren uterus could ever be, contemplating my holiday shopping safe and secure in my belief in, and advocacy of embryo donation.  And then I hear about this doctor in California who has a new kind of embryo bank.

Before I heard of this physician in California, I was aware of only one type of embryo bank; one where frozen “leftover” embryos are being made available for donation to infertile families.  These frozen embryos were the subject of my law review article.  This new embryo bank, however, does not contain any of these “leftover” frozen embryos.  This bank is comprised of embryos which were recently created using carefully selected donor eggs and donor sperm.  The donated eggs are fertilized with the donated sperm and the resulting embryos are frozen for future selection by hopeful intended parents.  Let’s stop briefly and note emphasis on the words “future selection”.  We will circle back to why this is relevant but I wanted to point out that these embryos are being created for future selection by wanna-be-moms and dads.

This physician has created his embryo bank in a manner to facilitate selection for all types of characteristics — everything from physical traits like blond hair and blue eyes to religious ethnicity.  Jewish embryos, who knew?  Actually, this could be fantastic for Jewish couples who need a single Jewish egg donor, and/or want to further ensure a connection with Judaism by having a genetic connection on the sperm side of life.  You have no idea how hard it can be to find a specific ethnic donor and this is something I gather this doctor has identified as a plus to his business model.  Speaking of business models, he also offers a money back guarantee.  You choose a batch of embryos to use to try and get pregnant.  If you don’t get pregnant the first time, you get two more tries using different batches of embryos.  If you don’t get pregnant, you get 100% of your money back (approx. $12,000).

Upon hearing of this embryo bank a part of me was disgusted and a part of me . . .  well I was excited.  Super excited. Especially about the money back guarantee.

The infertility patient part of me sees this as a great opportunity to get pregnant.  Frozen embryo transfers — while statistically less successful than fresh embryo transfers — can be lot easier to go through than an IVF cycle.  For me having the embryos created using donor gametes isn’t a big deal.  But if it were, I would be able to select an embryo based on whatever I might deem important.   So, yeah baby!  Let’s have another baby!  Give me this doctor’s number.  I am in!  Or perhaps it would be better to say the embryos are [going to be] in [me]!

But the legal scholar, academic, intellectual, lawyer part of my brain is sitting here vomiting and is pissed that I am putting these thoughts onto cyber-paper and making an argument in favor of this horrific new kind of embryo bank.  Stork Lawyer Reality check:  It is pretty much illegal to create embryos without first having identified intended parents as recipients for those embryos and from what I understand, there are no intended parents waiting for those embryos when this doctor is creating them.  The intended parents don’t enter the picture until the embryos are selected from the database and someone signs up with this program to undergo an embryo transfer procedure.  This is where that whole “future selection” comes in.

The laws regarding assisted reproduction essentially come down to intent to parent before conception: in a third party assisted reproductive arrangement there is supposed to be a contract or other document signed before the embryos are created, whereby intended parent(s) agree to be legally and morally responsible for the embryos and children that may result from the ART process.  In this case there is no such contract or preexisting intended parent.  The embryos subject of my law review article all had intended parents before the egg and sperm came together to create the now frozen “leftover” embryo.  But this new type of embryo banking lacks that component.  There are no intended parents choosing the eggs and the sperm with the immediate intent to parent.

And speaking of all those “leftover” embryos shouldn’t we first be dealing with and using all the existing cryopreserved embryos before we go about creating them? And what about the potential that this doctor may be creating even more “leftover” frozen embryos (what happens to those embryos that don’t get selected)?

Let’s not analyze whether this is baby selling.  I can’t, or won’t go there, although many others have.  Consanguinity, or the risk of an individual created through donor gametes marrying or having a child with a genetic sibling is another issue that has been raised.  The number of families that are created using any individual egg or sperm donor’s genetic material is a concern not to be overlooked or ignored.  These donors presumably are also donating through egg donation agencies, fertility clinics or sperm or egg banks.  We all have been astonished by stories of men who have discovered that they have fathered over a 100 children as a result of their donation to sperm banks — there is a significant risk that through this new type of embryo banking program not only will children have multiple full siblings running around but that egg and sperm donors have created half siblings through other programs.

Even more, if I understand this program correctly (and I am pretty sure I do) batches of embryos are being created which contain embryos which are full siblings to embryos which are contained in other or separate batches of embryos.  It sounds like  it is possible that three separate donations could take place using these three batches of embryos.  Okay, follow-me slowly here for a minute because this is a little bit like playing Twister.  In other words,  three batches of embryos each of which contain embryos which are full genetic siblings to embryos in other batches, could be donated to three different families thereby creating three separate families whose children are all full genetic siblings to each other!

Do the recipients of these embryos know how many full genetic siblings their child may have?  Are the donors aware?

It is supposedly almost impossible from a statistical standpoint for one of these children to marry its full sibling.  But when you add in the half siblings that could be created through other donation programs, and/or smaller ethnic groups for whom donation can be a challenge because of the limited number of donors available matching their ethnicity, doesn’t the risk become somewhat more than insignificant?  And even if it doesn’t, I worry that people don’t have enough information about how many genetic siblings are out there whether they are full or half siblings.

But I get it, I get why he did it.  Especially for someone with an ethnic background this type of program would be hugely popular and let’s not forget the money back guarantee.  We’re all broke after trying IVF multiple times, why the heck not take out a second mortgage if you know you will be able to pay it back if you don’t get pregnant?  Sounds pretty good doesn’t it?

I am at war with myself.  I want to go running to that clinic and pick out an embryo tomorrow.  And then my lawyer (self) tells me to stop and think about whether I want to participate in, and thereby endorse a practice which I believe, in my own legal opinion, is legally impermissible, and legally and medically unethical.  Is my desire to be a gestational mother stronger than my moral center?  Good question.

 

 

The views expressed in this blog are the views and opinions of this author and are not intended to provide or constitute legal advice or a statement of the laws as they may pertain third-party assisted reproduction within the United States.

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Infertility Treatment and Insurance — Speak Up While You Can!

January 30, 2012 | By: | Filed under: Announcements, Current Affairs, Financing Fertility Treament or Adoption, Insurance for Infertility, IVF, The Journey to Parenthood

There is an important deadline tomorrow:

Public commentary (from you!!) is needed to demand that infertility treatment coverage be included as an essential benefit under the Affordable Care Act (ACA).  To include your voice and make sure your concerns and needs are addressed contact the Department of Health and Human Services before January 31st, 2012.

The decision to include infertility treatment as a covered essential benefit falls solely in the hands of Kathleen Sebelius, US Secretary of Health and Human Services.  You can email her at

EssentialHealthBenefits@cms.hhs.gov

For more information please read http://myemail.constantcontact.com/Infertility-Matters–Demanding-Essential-Benefit-Coverage.html?soid=1101342191383&aid=B44Urr44QiU

 

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More “Octomom” Fall-Out, should her doctor lose his license?

October 16, 2010 | By: | Filed under: Check This Out, Current Affairs, In the News, Infertility on Television, Personal Musings, Thinking Out Loud

According to a report in a Los Angeles newspaper today, the Octomom’s doctor is facing a hearing on Monday where he may lose his license.  Personally, I think what he did was malpractice and showed tremendous lack of forethought regarding the impact on this woman’s life and her family.  I don’t know that he could have predicted the societal impact and the repercussion in the reproductive medical industry.  But I wanted to know what you think!

With all the recent emphasis on single embryo transfer, and avoidance of multiple pregnancy (a twin pregnancy is now considered a management failure at some IVF Clinics), should patients in consultation with their doctors be the ones to choose to how many embryos to transfer or should doctors face regulation or possible loss of their medical license for listening to their patient when she asks to have multiple embryos transferred when it might be advisable to limit the number transferred?

Here’s the link to the article for more info:#mce_temp_url#

(in case the link doesn’t work, cut and paste this URL  http://www.whittierdailynews.com/news/ci_16351124)

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Feeling Overwhelmed and the Wonder of Autumn

November 6, 2009 | By: | Filed under: Peace to Parenthood

I’ve had a lot going on recently — between travelling for work, representing clients, and getting ready to launch an egg donation agency my plate is pretty full — on top of which I have family issues and a back that doesn’t really want to let me stand up straight (a metaphor for my life if ever there was one).  I was talking to my coach about how overwhelmed I feel and how does a business owner, lawyer, any professional person in general deal with that.  I also feel that a recent visit to Dr. Chung to address my own reproductive issues brought up a lot of memories and feelings which just added to feeling like I couldn’t manage my own life.  I know we all get there sometimes.  The days you don’t want to get out of bed, the days you want to take a mental health day from work, the days nothing goes right and you find yourself digging through your pocket book for chocolate or xanax or both!  LOL!

My coach gave me a lot to think about and work on and I must say that we worked through many of my personal issues surrounding feeling overwhelmed and now I am feeling much more empowered, but the bottom line I think was that I was (1) avoiding facing the issues and work that were bugging me ; (2) I wasn’t taking time for myself (hello Martyr Liz); and (3) I wasn’t taking time to look around me and feel grateful for things.

So this morning, as I do almost every morning, I sat down for my meditation time (which I will admit I haven’t had in over a month because of the demands of work) and I looked out the window of my sun porch and NOTICED the beautiful yellow and orange trees outside my windows.  Literally overnight they had gone from green to the amazing mix of colors, they are blazing with light and color and reminding me of the limitless capacity we all have for change.  Feeling overwhelmed is only a feeling.  Feelings are not facts, and they do not usually accurately represent where we are in our leaves.  If the trees in my backyard can go from spring green to autumn blazing bold orange and gold overnight, than so can we.  We can go from feeling overwhelmed, stuck, frustrated, anxious, or even despair at the stress in our lives presented by childlessness, infertility, infertility treatment, worries about follicle counts and E2 levels, birth mothers not returning our calls, our adoption cell phones not ringing, our agency calling to tell us our referral has been delayed (again) . . . whatever it is . . . to recognizing that we really are all okay, everything is perfect in our lives right now and that we are safe and not alone.  It doesn’t take much.  For me all it took was taking a break and looking and really seeing outside the window of my world.  That tree changed overnight.  Nothing is permanent or forever.  Those leaves will be gone in a few days leaving me with new views to ponder.  Tomorrow your E2 level will be different, you might get  a call that a spot opened up on a dr’s wait list, or your referral might come in from your agency.

Take a moment and look at something outside of your normal consciousness.  Something you take for granted, something you ignore.  Notice how beautiful and miraculous it is.  The write down what you noticed about it, and then write down everything that is making you feel overwhelmed or stuck.

Next, write down the opposite of everything that is making you feel overwhelmed or stuck.  Write down the way you want it to be.  That tree in my yard changed overnight.  In a few days it will change again.  It reminded me that our lives our fluid and constantly moving.  Our feelings are just feelings.  Write them down, then write down what you want the reality to be.  I bet you anything that just like the blazing fire of autumnal glory outside my window that is transfixing me and inspiring me, the thing you look at will change your perspective as well and you will see or remember that the list of what you want is moving closer to you every second.

And if that didn’t work . . . just remember this adage someone once told me.  Imagine you are swimming in the ocean toward the shore.  But the current is so strong that as you swim you get no closer to land.  However, every stroke of your arms and kick of your legs fighting that current is making your legs and arms stronger.  When that current releases you, you will literally fly through the water toward the land at a speed you cannot comprehend right now.  Every stroke is building muscle.  Every breathe is keeping you strong.  Because nothing is permanent and that current will disappear and you will be swimming faster toward your dreams and goals than you can even begin to comprehend now as you fight with that current.  Surrender to the current.

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The Stork Lawyer Economic Stimulus Plan of 2009 is Here!

April 16, 2009 | By: | Filed under: Current Affairs, Financing Fertility Treament or Adoption, Questions about the Office

As Tax Day comes and goes and so many people are struggling both with infertility and paying bills, and praying that tax refunds will help pay for treatment or adoption expenses, we’ve been asking, what can we do to help?

Well, we’ve decided to extend a little economic stimulus package of our own! The Stork Lawyer Economic Stimulus Plan of 2009 is designed to make all legal services for family building more affordable for everyone!

First, we’d like to remind you that we offer a free egg donation contract per fiscal quarter to qualifying individuals and families. To make this even more meaningful, we are changing the criteria for applicants to make it easier to qualify for a free contract. Although our website has not yet been updated, we urge anyone who would like to apply for a free egg donation contract due to their difficulty in paying the expenses associated with their egg donation cycle to submit an application. We will send them the criteria by email (until it is posted on our website), and we will consider all applications submitted regardless of whether they strictly meet our criteria.

Second, we are offering a 15% discount on our legal services for egg donation and gestational carrier arrangements to all new clients. Our normal fees have been slashed! For the next fiscal quarter and perhaps even longer, our new rates will reflect an across the board reduction of 15%.

Third, for clients who retain us during the second fiscal quarter of 2009, we are offering flat fee billing arrangements on all parentage orders, and on most of our adoption services. By establishing flat fee billing arrangements we hope to reduce people’s worry regarding how much their legal fees will be to adopt domestically and/or to establish their genetic relationship with their child conceived through third party assisted reproductive arrangements.

If you have any questions or require specific information for yourself or even your friends, please do not hesitate to contact me and I would be happy to speak with you about making your family building more affordable. You can reach me by email at Liz@StorkLawyer.com

Please check our website frequently as we will be providing specific details regarding:

The Stork Lawyer Economic Stimulus Plan of 2009!

Thank you,

Elizabeth Swire Falker, Esq.

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p.s. Nothing in this blog shall be deemed to create an attorney-client relationship and we may not be able to provide legal counsel and advice to all persons who contact the office in response to this blog post due to ethical restrictions imposed upon the office. However, please do not hesitate to contact us with questions or to see if we can assist you.

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